Dialogical reasoning in separate judicial opinions: The path of negation

This chapter analyses the use of syntactic negation as a vehicle that promotes alternative legal reasoning in separate judicial opinions. Building on legal and linguistic literature, the Chapter problematizes the role of separate judicial opinions as a genre distinct from the judgment yet dialogically tethered to it. Separate opinions exist on a cline of misalignment and disagreement with the majority, which frequently finds textual realization through negation of the majority’s reasoning. The chapter explores a methodological triangulation and cross-fertilization of dialogism, legal argumentation and negation to analyse separate opinions attached to Grand Chamber judgments of the European Court of Human Rights. Relying on corpus linguistics tools, the chapter demonstrates that syntactic negation is more recurrent in separate opinions than in other genres of non-legal or non-judicial nature. As negation is embedded in legal argumentation schemes of rebuttal and undercutting, most of its uses acquire the so-called polemic or dialogical value (Ducrot 1984), aimed at negating an opposing standpoint, rather than a mere descriptive statement of fact. The analysis also shows how negative patterns performing repudiatory functions (not (only) …but (also), neither …nor) allow the minority judges to rebut the majority’s arguments and offer their own, alternative, legal reasoning, contributing to the pluralism of legal discourse.